Local Officials Support Climate Action, but What Will Happen to the Clean Power Plan?

The president’s executive order on energy leaves the Paris Climate Agreement intact – but while it merely calls for the review of the CPP, it has been widely viewed as the president’s first step to dismantle Obama’s signature climate change measure.

“The Clean Power Plan is about more than power plants – it represents the country’s most aggressive effort to date to protect the health and well-being of our communities from carbon pollution and climate change.” -Mayors Bill Peduto and Jim Kenney (Getty Images)

This post was co-authored by Lisa Soronen and Carolyn Berndt.

This week, President Donald Trump released his long-awaited Executive Order (EO) on Promoting Energy Independence and Economic Growth, which seeks to “promote clean and safe development of our nation’s vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”

However, by targeting the Clean Power Plan (CPP) as well as federal agency preparedness and consideration of climate impacts in decision-making, the EO will undo much of President Barack Obama’s climate legacy and “undermines [the strong federal-local] partnership, imperils the health of our citizens, and threatens our environment,” said NLC President and Cleveland Councilmember Matt Zone in a statement.

As the EO was in the process of being released, more than 150 local elected officials sent a letter to President Trump and Congress reaffirming their commitment to acting on climate change at the local level and calling on the federal government to be a partner in that effort.

“As the elected officials closest and most directly accountable to residents, we cannot let our communities down by taking a step back on our actions and commitments to address climate change,” the NLC letter states.

A letter from the U.S. Mayors’ National Climate Action Agenda network expressed a similar commitment to “taking every action possible to achieve the principles and goals of the Paris Climate Agreement, and to engage states, businesses and other sectors to join us.”

Clean Power Plan

The EO leaves the Paris Climate Agreement intact, and while it merely calls for the “review” of the CPP, it has been widely viewed as the president’s first step to dismantle Obama’s signature climate change measure, which, coupled with the other changes, would make it difficult for the U.S. to meet its commitment under the Paris agreement. The EO goes on to say that, after review, the U.S. Environmental Protection Agency (EPA) “if appropriate, shall, as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising, or rescinding those rules.”

The CPP would reduce carbon emissions from power plants by 32 percent below 2005 levels by 2030 and sets state-specific carbon emissions reduction goals, letting the states develop and implement their own plan for meeting the goals.

A number of states have sued the Obama administration, claiming the CPP regulations exceeded EPA’s authority under the Clean Air Act. Others states and cities, as well as the National League of Cities (NLC) and the U.S. Conference of Mayors, filed amicus briefs in support of the CPP. In February 2016, the Supreme Court prevented the CPP regulations from going into effect until the D.C. Circuit Court of Appeals (and the Supreme Court, if it chooses to) rules on the regulations.

In September 2016, the entire D.C. Circuit heard oral arguments in West Virginia v. EPA, but the court has yet to issue an opinion in this case.

The Trump administration has asked the D.C. Circuit to hold the case in abeyance while the EPA engages in rulemaking. The motion argues abeyance “avoid[s] unnecessary adjudication, support[s] the integrity of the administrative process, and ensure[s] due respect for the prerogative of the executive branch to reconsider the policy decisions of a prior administration.”

The D.C. Circuit is more likely to agree to the motion if all parties involved agree with it. Almost all interveners supporting the CPP want the litigation over the current CPP regulations to continue and will oppose the motion.

If the D.C. Circuit grants the Trump administration’s motion, the practical effect is the current CPP would no longer be valid. If the D.C. Circuit does not grant the motion, litigation will continue. No matter who wins West Virginia v. EPA, assuming the abeyance motion is denied, the case will be appealed to the Supreme Court, which may or may not agree to hear it.

Meanwhile, a new version of the Clean Power Plan will work its way through the lengthy notice and comment process under the Administrative Procedure Act. It, too, will likely be ultimately litigated regardless of the fate of the current CPP.

Other Provisions in the Executive Order

One of the Obama-era executive orders that President Trump’s EO revokes outright is Executive Order 13653: Preparing the United States for the Impacts of Climate Change (Nov. 2013), which created the State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience. The Task Force provided recommendations to the president on ways in which the federal government can remove barriers, create incentives, and provide tools and information to state and local governments to increase preparedness and resilience to climate change.

More broadly, the EO calls for the “immediate review of all agency actions that potentially burden the safe, efficient development of domestic energy resources,” as well as the review of the social costs of greenhouse gas emissions that factor into federal agency decision-making. These provisions reverse the requirement that agencies consider the risks posed by climate change to their missions, programs and facilities, which will undermine the ability of the federal government to prepare for future impacts – a position that is at odds with many of the sustainability and resilience initiatives underway at the local level.

About the authors:

Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

Carolyn Berndt is the Program Director for Infrastructure and Sustainability on the NLC Federal Advocacy team. She leads NLC’s advocacy, regulatory, and policy efforts on energy and environmental issues, including water infrastructure and financing, air and water quality, climate change, and energy efficiency. Follow Carolyn on Twitter at @BerndtCarolyn.